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Monday, October 31, 2016

A Secular Case for Common Civil Code

Abdul Rahman

The news regarding
Muslim Personal Law Board and other Muslim organisations’ adamant stand on the
issue of tripal talaq and BJP led union government’s attempt to push for
Universal Civil Code (hereafter UCC)[1] has
energised the debate on reforms in Muslim Personal laws verses UCC. A section
of Muslim women along with Bhartiye Muslim Mahila Andolan (a secular
organisation established by Muslim women in 2007) have decided to take the
issue to the Supreme Court in the form of PIL. The government is in favour of
abolishing the practice of tripal talaq too. However, RSS-BJP sees this
opportunity to polarize the Hindus raising the issue of UCC. Secular
left-liberal sections are divided on the issue as always. Present article tries
to introduce secularist debates on the need and nature of UCC.

The focus here is
to establish that why reform in Muslim personal laws alone is not enough and
why UCC should not be seen from a communal point of view but a secular attempt
to fight against patriarchy and create equality. The first part deals with the
history of the debates on UCC and the second part tries to highlight the
central points.

II

Article 44 of
the Indian constitution says “the state shall endeavour to secure for the citizens
a uniform civil code throughout the territory
of India.”[2] At
the time of the writing of the constitution secular universalism was the basis
of nation making process adopted by our law makers and hence it was no surprise
that Indian constituent assembly adopted such aims. All the progressive forces
were firmly behind the idea of uniform laws. This zeal was derived from liberal
influences of English tradition, namely the “rule of law”. Mino Masani, one of
the liberal members of the constituent assembly pointed out the danger of
community based laws. There were also women members in the Constituent Assembly
such as Hansha Mehta and Amrit Kaur who demanded a universal civil code as a
protection of women rights.[3] As a first step to that uniform civil code
Ambedkar as law minister of India
produced Hindu Code Bill in the parliament. This bill was a comprehensive
attempt to ‘modernise’ and codify the Hindu traditions of marriage, family and
inheritance. In 1947 when this bill was first proposed in the parliament a
substantial number of legislatures, however opposed it. This was the first sign
of problems which UCC was to face in the future.

The President of
India at the time, Dr. Rajendra Prasad was vehemently opposed to any idea of
state intervention in the so called Hindu traditions.[4] When
Hindu Code Bill was finally introduced after four years of debate in 1951 the
number of people who opposed it increased. Nehru, as Prime Minister of India
proposed caution and waited for the 1952 elections to get a mandate from the
people for such reforms. Ambedkar resigned from the cabinet due to reluctance
of Nehru to push the bill at one go. Finally, the laws which came from the
original Hindu Code Bill in 1955 and 1956 modified and codified the Hindu
traditions of marriage, family and inheritance. The Hindu Right was furious
despite the fact that Nehru’s cabinet had mellowed down the original bill in
their favour. Once the laws were enacted Hindu Right used it as a tool of
mobilization and polarization vis-à-vis minorities which still retained their
personal laws. Nonetheless, the demands for universal personal laws were still
raised by the left and liberal groups. The women movement in India fought
for equal rights and forced the state to make secular interventions in the form
of Dowry Prohibition Act of 1961 and Medical Termination of Pregnancy Act,
1971. All such laws were opposed by the religious groups including Hindus,
Muslims and Christians.

In the 1980s a
new turn of global and domestic events turned the debates of UCC upside down
within the left and liberal circles including the women movement. The rise of
multiculturism and post-modernism in social sciences along with the rise of
neo-liberalism influenced the policy approaches of states in the post-colonial
societies too. The centrality of individual as a subject of universal laws is
‘modernist telo’ hence outdated and ‘regressive’ was a common refrain by
enthusiasts of post-modernism and multiculturalism. For them left-liberal
emphasis on universal individual rights is based on “wrong” notions of their
autonomy. Individuals are ‘embedded’ in “particular social roles and
relationships” and “such embedded selves do not form and revise their own
conception of the good life; instead they inherit a way of life which defines
their good for them”.[5]
Hence, in the eyes of cultural relativism and multiculturalism, standing with
the minority rights meant “defending cohesive and communally minded minority
groups against the encroachment of liberal individualism.”[6] The
process of ‘national building’ too moved significantly away from notions of universalism.
Though extremist multicultural positions were later rejected by the
left-liberal sections a more tolerant view of cultural differences was
gradually being adopted throughout the globe. The democratic state need not
impose one version of law on everyone and let the cultural differences be
particularly when it belongs to the minorities. There are many unresolved
debates among the left and liberal circles about the extent of specificity and
universalism. However, it was obvious that the fight for universal individual
rights and equality was on the back foot at the time.

The Right moved
opposite to that of the Left-liberal view once again. It did reject the whole
idea of relativism and instead, became rigid Universalist albeit from a
majoritarian point of view. The world witnessed rise of popular movements rejecting
any project of tolerance propounded by multiculturists in the western
societies. The Right in these societies based its campaign on fear mongering
about minorities; internal as well as migrant. This deepened the crisis among
the left further. Popularity of such rightwing rejection throughout the globe
at the time forced more pragmatics among the left to either lie low or play
with the gallery. This is not to suggest that the Right was ever tolerant.
However, conservativism has always talked about ‘the respect of traditions’ and
so on in the past. This particular stance changed in the 1980s as far as the
Right is concerned. The Right was globally gripped in cultural paranoia and the
left and liberal forces were ineffective if not invisible.

1980s was an era
of turmoil both economically and politically in India. The initiation of economic
reforms was coincided by the aggressive rightwing assertion. The issues of
Babri Masjid-Ram Madir agitation, rise of militancy in both Kashmir and Punjab, and the Shah Bano case etc were symbolic of the
turmoil of the era.

1980s is hence
the period in which the communal polarisation became severe due to rising inability
or rather reluctance of the state to intervene. The concurrent events of Shah Bano
and Ayodhya were classic turning points in Indian politics vis-à-vis the issue
of universal personal laws. The polarization was complete between the Hindu and
the Muslim rightwing. The RSS-BJP, more stronger and more articulate movements
of the right than its predecessor Jansangh of the 1950s, led the Hindu
attack with slogans of ‘minority appeasement’ and ‘pseudo-secularism’ with
three fold demands of Ram Mandir, abolition of article 370 and UCC. It is very
clear that the failure of the state in 1980s in maintaining the secular
credentials in law provided solid ground to RSS-BJP politics. If we see
carefully none of the issues raised by Hindu Right is related to political
economy on the surface. Here the concerns of the liberal and the rights merged.
May be, that was the first assertion of a kind of ‘Washington Consensus’ among
Indian politicians.

The Muslim and
Sikh rightwing too had a role to play in 1980s. The rise of Khalistan movement
is well known and we need not to go into the details of it here as this had
noting much to do with the UCC debate. Suffice is to say that, Sikhs were made part
of the Hindu personal laws emerging from Hindu Code Bill in the 1950s and hence
their grievances were similar to the Hindu Right. The Muslim Right, led by
various ulemas and organisations including Muslim Personal Law Board and
Jamat-i-Islami etc reacted to Shah Bano judgment more furiously than the Hindu Right
in 1950s and 1960s when the Hindu personal laws were codified and somewhat
modernised. This reaction, though limited to urban and so called educated sections
among the Muslims was portrayed as universal Muslim rejection. It forced the
government to intervene and nullify the Supreme Court Judgement in Shah Bano
case. The government instead enacted Muslim Women (Protection of Rights on
Divorce) Act in 1986.

This state
intervention under pressure from Muslim Right strengthened the arguments of
“minority” rather “muslin appeasement” by the Hindu rightwing. The demands of
UCC hence became a tool for further polarization of the Hindus against the
Muslims in late 1980s and early 1990s. The left and liberal forces both, due to
acceptance of the ideas of multiculturalism and due to realpolitik
considerations gradually desisted itself from raising the demand of UCC. During
the first NDA regime 1998-2004 BJP did not have absolute majority and hence the
UCC was never made a significant issue. However, today when BJP is in power
with absolute majority in the Lok Sabha it is under pressure from the Hindu
Right to push for UCC. The desperation shown by the BJP is also due to its
failures to deliver on its main election agenda of development. There are no
substantial achievements on the economic front in the last two years. It is but
obvious that issues like UCC and ‘Pakistan
sponsored terrorism’ are seen as saving grace by the pundits sitting in
Jhandewalan and Nagpur.
But is it that simple? Is the demand of common civil code has no merit for
left, liberal and feminist movements? Are demands of common civil code and
reforms in the Muslim personal laws same?

III

Equality is one
of the most celebrated values of enlightenment. Both the liberal and the left,
despite their disagreements over the form and extent, agree that a modern
society without equality is impossible. Indian constitution, a classic liberal
text, recognises this beyond any doubt and makes several provisions for it most
explicitly in part III. Feminists of all hues, if we agree to exclude the so
called feminism of the religious right (both Islamic or Christian and Hindu in
the present case), struggle for equality. Among many ways, universal personal
law is also seen by many as an attempt to create the same equality. Perhaps
that was the reason that the left and the liberal forces supported the demands
for common civil code very early in post-independent India. One of the largest women
groups in the country, All India Democratic Women Association (AIDWA) has
supported the idea of universal secular laws for women across the religious
divides. The internal left debate about multiculturism and cultural relativism
is unsettling however. The arguments in favour of cultural relativism put
forward by the pundits of multiculturism, if accepted, will do much harm to the
projects of equality. It will be like accepting the demands of Khap panchayats
to kill girls if they marry out of choice or let some burn their women in the
name of Sati. Respecting differences cannot be an absolute in all
circumstances. There must be ‘minimums’ defined through a democratic process
for any society. If equality remains the universal value there can be no denial
of the need of massive reforms in the respective personal laws on the secular
lines or even on the lines of a common civil code.

It is often
pointed out and rightly so that historically Muslim and Christian personal laws
have been more progressive than the Hindu personal law which were only codified
and modernised in 1950s. Some intellectuals of the left are fearful of the attempts
to ‘Hinduise’ UCC in case it is adopted today when BJP is in power. This is a
genuine concern. However, the point it not to create a UCC overnight but to
agree in principle whether we want it or not? If we start debating its
possibility and there is consensus we can always fight against any ‘cultural
imperialism’. We can’t be postponing the debate forever.

It is a fact
that Sharia had more provisions for the rights of women than any
tradition or codes of Manu in terms of marriage, divorce and share in the
ancestral property. However, post the reforms in the Hindu personal laws this
‘advantage’ is history. Thanks to interventions of secular judiciary from time
to time, Hindu women have moved from no share to equal share in the ancestral
property in 2005. They are now much ahead of a Muslim woman who still has right
to one third share. Their share in the property of their parents has not moved since
the seventh century.

However, a UCC
is not specific to one community and if there are progressive elements in a
community’s personal laws there should be attempts to retain it as a common
law. The case for UCC is not for regression rather for progression. UCC would be
an attempt to secularise the laws and see the women as women and not whether
she is a Muslim woman or a Hindu woman. They both suffer if divorced without any
means of subsistence. A Muslim woman should have the right to claim, if she
wants to, an equal share in their ancestral property as any Hindu woman. She
needs same rights to abortion as woman whether she is a Muslim, a Hindu or a
Christian. She cannot be punished because she was born in a particular
community. This is common sense. Of course there should be flexibility and
space for the peculiarities of the individual cases. But, the need of equal
justice is beyond any doubt and hence demands for secular universal laws or common
civil code despite of the fact that rightwing is leading it, remains an
important demand for Indian women movement.

Now the question
arises, and this is a very significant question, ‘what would be the basis of
universality’ in the common code? Some liberal and left intellectuals have an
apprehension, as mentioned above, that since a rightwing government is in power
they might try to ‘hinduise’ the common provisions of the code. This is a
possibility but one should not throw the baby with the bath water. The common personal
law, if at all actualised must be based on a democratic process in which the
culturally harmless practices of marriage rituals of each community should be
allowed to be. The main concerns of equality in marriage, family and
inheritance must be based on the model of existing secular laws which are in
turn based on the principle of rule of law where they are already available, as
in the case of divorce and inheritance under Special Marriage Act of 1954.
Where it is not available, it should be created with care and consensus. The
possibility of hegemonic cultural influences on the common civil code can be
minimised or eradicated if secular principles are adopted. For example,
provision of polygamy in Islam is not a ‘harmless cultural practice.’ In fact
it is not even a common practice among the Muslims. One can quote shuras
from the Quran about the restrictions imposed on men to marry more than
one wife but that does not theoretically eradicate the possibility. Again,
one can debate whether we want universal ‘gender neutral polygamy’ or abolish
the institution of marriage altogether. These are possibilities, if we agree
that religion should not be the restricting element for either men or women. As
far as divorce (Talaq) is concerned, there is a secular procedure available
and all the culturally regressive and obscurantist practices including the
practice of triple talaq need to go. No religious community can claim to
have a superior personal law. Even the Hindu personal laws have problems of
inequality and untoward benefits in the name of Hindu undivided family. There
are shortcomings and patriarchal biases inherent in all of them. Common civil
Code should be seen as addressing those lacunas from a secular women right’s
perspective.

There is another
argument put forward by some scholars that due to gradual secularisation of
laws and progressive interpretations by the courts from time to time most of
community based personal laws are anyway universalised and hence there is no
real need for a UCC. Rohit De argues that,

Legislative reforms in Hindu and Christian laws and the increasing
juridification of the Muslim law have created a greater degree of uniformity
among different personal laws. Secondly, there is more debate and dissent
within communities and a concerted attempt to reform family law from within.
Thirdly, new evidence suggests that gender inequality within the family bears a
greater correlation to socio-economic conditions than the form of religious
law. But perhaps, most importantly, the new areas of emphasis on family law
reform address questions such as domestic violence which cut across community
identities and concerns.[7]

The most popular
example of such development is The Domestic Violence Act of 2005 and Dowry
Prohibition Act 1961. Examples of how courts have interpreted the Muslim Women
(Protection of Rights on Divorce) Act, 1986 in favour of women without any
resistance from the Muslim men is also given. But the question remains, why
should we leave it on the subjectivity or lawyers and judges to decide what
should be an objective right of a woman?

The question of
pluralism and multiculturism is also raised. Let Muslim women decide if there
should be reforms in their personal laws or not. Why should we impose it from
outside? Then there is another question about who decides what is good and bad?
Nivedita Menon argues, for example, that there are much ‘better’ provisions of Mehr
and protection of second wife in Sharia than Hindu acts though Hindu
right makes these provisions looks regressive. She argues that gender justice
is not necessarily based on universal laws.[8] These
are difficult issues to decide. However, we should not forget that pluralism
and cultural relativism is two edged sword as pointed above. Mr. Wali Madani
general secretary of All India Muslim Personal Law Board defends Tripal
Talaq on the basis of pluralism.[9] The
heads of Khap, when they expressed their opposition to the attempts by the
Supreme Court to make them illegal by law, quoted similar grounds. There are
multiple examples where the Hindu rightwing defends caste and gender oppression
in the name of ‘pluralism’. On the similar basis Shah Bano was denied the
allowance and often Child Marriage, Female Circumcision and even Sati
has been justified. As argued above we need to see culture in a different light
and pluralism should be no excuse to regression. This is not to argue that
pluralism per se is unacceptable. But, as stated above, it cannot be an
absolute. The reforms from within can take millennia. It all depends on
circumstances. We should not forget the history of women right movement in India both
during the colonial and post-colonial phases. All the struggles for gender
justice had to face similar arguments and in all cases women movement has
rejected them. If a section of women
from the Muslim community want their freedom and rights now can we ask them to
fight within their community first? Did we do that in case of Sati,
child marriage, widow remarriage etc in the past? There are many Muslim
societies in the world who have modernised their personal laws by state
intervention. In most of these societies the community did not take initiatives
to change such laws.

In the present
case the demand for the reforms in coming from within the Muslim community. All
India Muslim Personal Law Board (AIMPLB) is not giving even a sympathetic hearing
to the demands. Instead there is a contemptuous rejection. It seems they are
playing with the genuine insecurities, among the progressive sections within
the community and that from the outside of it, emanating from the fact that BJP
is in power to safeguard the interest of men. Is this not patriarchal
arrogance?

The achievement
of common civil code is still far and it would not be simple either. The
obscurantism in all religious groups is guided by patriarchy and not religion.
Culture and religion are masks which patriarchy wears all the time. Cultural
relativism is yet another sophisticated tool used by patriarchy against the
movements for equality. One should be careful of not playing in the hands of
one rightwing or the other particularly at the time in which we are living in India
now. However, no fear should stop us from fighting and demanding what is just.

IV

The article 44
is in part IV of the Indian Constitution which is called Directive Principles
of State Policy which is non-justifiable in courts. In this part there are also
articles 39 (Common Good and Economic Rights of people), article 41 (Right to
work and education etc), article 42 (Provision for Just and Humane Condition of
Work and Maternity) and article 43 (Living Wages etc). This same part also has
article 48 (Organisation of agriculture and Animal Husbandry) which asks the
state to protect the cows and other milch and draught animals. The part IV A is
about fundamental duties which in its entries (e) asks Indian citizens “to promote
harmony and the spirit of common brotherhood amongst all the people of India
transcending religious, linguistic and regional or sectional diversities; to
renounce practices derogatory to the dignity of women”. The passionate and
enthusiastic call for common civil code and may be article 48 partially and none
of the other issues mentioned in the same part of the constitution exposes the
selective and parochial approach of both the Indian state and the citizenry
like none other. The time is take them head on and not to be defensive in any
manner.

Notes and
References

[1]There are
some differences between the idea of a Common Civil Code and a Universal Civil
Code theoretically. However, in this article it has been used interchangeably
for the purpose of debate.

[2] See A G
Noorani’s (2015) excellent articles in Frontline on the debates in the
constituent assembly and later court judgements related to this article.
“Hindutva’s Stick”, November 24 and “Zeal and Poor Scholarship”, December 11

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